Arresting Damian Green MP

A huge storm has blown up in the media and among MPs over the action of the police in arresting the Tory front-bench shadow immigration minister, Damian Green, holding him for nine hours (including two hours of questioning), searching with considerable rigour both his offices (including his office in the House of Commons) and his two homes, and taking away documents, his Blackberry, his mobile phone and, according to some reports, his computer. They also blocked his parliamentary e-mails for most of a day.

It certainly looks as if the police yielded to the itch for drama and allowed themselves to get carried away by their enthusiasm for tracking down leaks of government information and teaching those responsible for them a salutary lesson. They may also have been pretty obtuse if they failed to foresee the amount of indignation and anger that their treatment of Mr Green would inevitably provoke. But before we all get carried away on a tide of protest, it’s worth trying to nail a few myths, many of which are prominently featured in today’s media reports.

Myth No. 1: That Mr Green was arrested and his homes and offices searched by anti-terrorism officers, acting under anti-terrorism law. The police have denied that anti-terrorism officers were involved in the arrest, questioning or searches, and that Mr Green was arrested on suspicion of offences under any anti-terrorism law. Even the police would hardly issue such a denial if the truth was otherwise. (The Guardian publishes this denial but elsewhere reports as fact that anti-terrorism officers arrested Green in connection with suspected offences under anti-terrorism legislation, and prominently publishes a letter protesting at such abuse of anti-terrorism law and powers.)

Myth No. 2: That Mr Green was arrested under the Official Secrets Act. Contrary to some reports, there’s no evidence that Mr Green is suspected or accused of any offence under this Act. (It seems that the arrest etc was on suspicion of “aiding and abetting misconduct in a public office“, a common law offence which seems to refer to the action of the junior Home Office official accused of leaking information to Mr Green, not to any “misconduct in a public office” by Mr Green himself, although this is not yet 100% clear.)

Myth No. 3: That the police action was in breach of “Parliamentary privilege”, a term much bandied about in media interviews and reports. But parliamentary privilege does not protect MPs from arrest or investigation, charge or trial, in connection with suspected breach of the law. Nor does it prevent the police from pursuing their investigations within the Houses of Parliament — especially as in this case they had sensibly taken the precaution of informing the senior official of the House of Commons, the Serjeant-at-Arms, of what they intended to do. (According to several reports, the Speaker was also informed in advance, presumably by the Serjeant-at-Arms if not by the police direct, and raised no objection.)

Myth No. 4: That the documents leaked to Mr Green were classified ‘secret’ (as alleged by, among others, the Guardian; the FT prudently says only that they were ‘sensitive’). We simply don’t know, and probably never will, whether the documents were ‘secret’, ‘confidential’, ‘restricted’, or indeed even ‘unclassified’.

Myth No. 5: That since no ministers were told in advance of the police’s intentions regarding Mr Green, no minister can be held responsible for what the police did; and anyway the police are independent of political control in operational matters (which is true). However, those informed by the police in advance appear to have included the Secretary to the Cabinet and Head of the Home Civil Service; the Permanent Secretary at the Home Office (who had originally asked the police to investigate the leaks to Mr Green); and the Mayor of London, Boris Johnson (who, according to some accounts, did raise doubts over the need to act as proposed). As the FT remarks, “last night Whitehall insiders were incredulous at the idea that [the Cabinet Secretary] and [the Home Office permanent secretary] did not immediately inform ministers once they were told what the police intended to do.” Even if ministers were not told in advance, as they seem to be claiming (although in rather suspiciously cautious language about not having “been involved” in the decision), the fact remains that they should have been. If they weren’t told, they are evidently guilty of a culpable failure to ensure that their senior officials knew what kinds of information needed to be passed immediately to ministers. “Nobody told me, guv” is no defence for a minister whose department has behaved wrongly. If the police are deemed to have exceeded their powers, or to have breached parliamentary privilege (e.g. in interfering in Mr Green’s ability to communicate with his constituents), or to have acted in a political context without proper political authority, or simply to have over-reacted in a manner disproportionate to the nature of any offence apparently committed, then the Home Secretary, Jacqui Smith, is responsible and should resign. This was not a purely operational matter, as the police tacitly recognised when they gave advance warning of it to senior officials and the Mayor.

Myth No. 6: That it is the duty of civil servants to leak information to MPs or the media if they believe that the information reveals dishonesty, other immoral behaviour, or policies to which the civil servant objects on moral or political grounds. No such duty exists or can exist. Indeed in any such circumstances an official has a duty to protect the confidentiality of the information in question but also a duty and right to take his or her objections or qualms to higher authority in the civil service, up a prescribed route, and ultimately to the head of the civil service himself. If this produces no redress, the official may ask for transfer to other, unrelated duties, or, in the last resort, must resign, and (provided that he or she is willing to risk prosecution for doing so) only then take the information to an MP or the media. All governments of whatever party and whatever country need to be able to protect certain kinds of information from being revealed publicly, for example when it relates to discussion of possible policy options before decisions are taken, or information provided to government in confidence, or information whose disclosure is likely to damage national security: and they are entitled to rely on the discretion of their officials in protecting that confidentiality. It’s not for an unelected official to override the policies or decisions of elected ministers as to what information should be released, and when it should be released. Those who can’t accept such restraint on their freedom to pass whatever information they like to whomever they like don’t belong in the public service.

Myth No. 7: That whistleblowers are performing a public service and should be protected. There’s room for legitimate debate about this as a general proposition, subject always to the considerations in Myth No. 6 above. But there’s no evidence so far that in this particular case the Home Office leaker was motivated by conscientious objection to any particular government action or policy. The leaks seem from the nature of the information leaked to have been motivated mainly by a desire to provide ammunition to the parliamentary opposition and thus to cause difficulty for the government. If that proves to have been the case, there would seem to be no possible argument for protecting the leaker from the consequences of his or her action.

Myth No. 8: That MPs (especially opposition MPs) and ‘investigative’ journalists can’t do their jobs without receiving leaked information from moles within government. This is stated with startling clarity by John Kampfner, former editor of the New Statesman, in a column in today’s Guardian:

What is the point of the media if it does not see its primary task as gathering information to hold power to account? Investigative journalism takes time and money. One can count on the fingers of perhaps two hands the serious practitioners, many of whom rely on whistleblowers.

It’s depressing to find such an experienced and sophisticated journalist as John Kampfner propounding such a dangerously inflated — indeed distorted — view of the main function of the media, as well as the pernicious doctrine that it’s perfectly OK to collude in, and benefit from, the commission of an offence by another person so long as the objective is the noble one of “holding power to account”. The same untenable view is implied by the Guardian‘s editorial comment today.

It’s right to draw a distinction between on the one hand the action of an MP or journalist who receives a brown envelope through the post, unsolicited, containing juicy information, however improperly leaked, and who then makes public use of it; and, on the other hand, action by an MP or journalist actively to incite a public servant to provide sensitive information in breach of his or her duty of confidentiality. Since improper leaking of information by an official is an offence (whether under the Official Secrets Act or, as here, apparently, under common law), inciting another person to commit such an offence must itself be an offence as well, perhaps in some cases the offence of conspiracy. Damian Green’s Tory colleagues have strongly denied that he had in any way encouraged the alleged leaker to leak, e.g. by offering either money or any other kind of inducement for the leaked information. It may or may not be relevant that the leaker had apparently asked for a job in Damian Green’s parliamentary office and had been turned down.

There are those — and no doubt some of them will comment indignantly on this post — who see no need for confidentiality at any time for any information held by government; who regard all attempts at protecting the sensitivity of certain kinds of information as a conspiracy by ministers and officials to deceive the public by withholding from it information to which it is morally entitled; and who believe that all secrecy is prima facie evidence of criminality. Such an extreme view hardly deserves to be rebutted. There’s no government in the world that works in a totally transparent goldfish bowl; and it’s unlikely that all the world’s governments are engaged in a sinister conspiracy against their own citizens (even if some undoubtedly are). It’s certainly true that successive British governments have been and still are unnecessarily secretive, not venturing to make public much information which in practice could (and sometimes should) be released without the slightest risk of damage to the public interest. The Freedom of |Information Act has gone a considerable way towards overcoming this obsessive secrecy. All the more reason, then, to reduce to the absolute minimum the unsavoury, and possibly illegal, reliance by MPs and journalists on the betrayal of their duty by moles within government. Leaks are of course bread and butter to both opposition MPs and journalists, so it’s hardly surprising that this episode has stirred up such self-righteous indignation in both media and parliamentary circles. Cui bono? The government’s case on the other side is largely going by default: there’s so far been a sad lack of ministers or others stating a perfectly proper and persuasive case with the explanations required to convince ordinary people of its cogency. Most ministers are MPs too, and probably expect to be in opposition shortly, whereupon they too will suddenly recognise the rightness and necessity of leaks.

But I still think the police action was excessive!

Brian

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16 Responses

I’m more concerned about how we justify the argument that the police action was excessive. It’s not at all clear to me that the police did exceed their powers – not least because it’s not at all clear what the limits of police powers are, or who is to judge that the limits have been exceeded. Independence from political interference in operational matters seems a laudable principle, but entrenching that principle seems to have created a situation where the police are accountable to no one (except perhaps the Home Secretary in person).

Brian writes:Phil, I too have no reason to suspect the police of “exceeding their powers”: the doubt in my mind is whether the action they took was unnecessarily heavy-handed. Does it really take nine police officers to carry out the arrest of a member of Parliament who is hardly likely to resist, or to search his office and his house? Was it really necessary to keep him locked up for seven hours before they started to question him? Could he not have been invited to answer their questions without the need to arrest him, especially as after all this he was not charged with any offence? They apparently had a search warrant, so Green could hardly have objected to his houses and offices being searched, but as an MP he was hardly likely to object anyway. The whole thing just seems to have a whiff of the late-night television LAPD police melodrama about it. Let’s see whether, as more facts become known, it turns out that police suspicions were of something considerably more serious, relative to the many previous cases of politicians receiving illicitly leaked information, than currently appears to be the case.

Brian writes:Lord Harris’s comments are indeed well worth reading (according to his own website, “in 2004, he was appointed as the Home Secretary’s representative on the Metropolitan Police Authority to oversee the national and international responsibilities of the Metropolitan Police, primarily its role in counter-terrorism and security.”) I am especially struck by his belief that in such a sensitive case, the police would have sought the advice of the Crown Prosecution Service about the proportionality of each step that they proposed to take. Of course proportionality is a subjective concept and the CPS won’t always get it right, any more than the police. But the police and the CPS by definition know more about the potential gravity of the matters being investigated than the rest of us (including politicians, media commentators and bloggers) and are consequently better placed to judge whether their actions have been proportionate.

Concerning your reply to (my namesake) Lord Toby Harris’ comments, the Daily Mail state that “The Crown Prosecution Service was also consulted” and The Telegraph say that “Assistant Commissioner Quick’s team are said to have held “discussions” on “preliminary matters” with the Crown Prosecution Service (CPS) earlier this week. However, prosecutors stress that they were not involved in the decision to arrest and only learnt of the police action shortly before it happened.”

Concerning Myth 5: Is it possible that the Civil Service would not involve Ministers in such actions concerning an opposition MP specifically so that Ministers weren’t put in the position of appearing partisan?

Brian writes: Yes, that seems to me a very plausible reason for officials not consulting or informing ministers, even though I think it was quite wrong for them not to have done so. They might also have had the misguided idea that ministers might need to be able to say afterwards, when the brown stuff hit the fan, that they hadn’t been told in advance, a notion which strikes at the heart of the doctrine of ministerial responsibility for the actions of their officials.

One of the most disturbing aspects of this case is that the police may indeed have the power to act as they did. There was a time when the police had to have reasonable grounds to suspect that the arrested person had commited an arrestable offence before they could arrest someone. New Labour have undermined the freedom of the individual in many ways since they came to power. If the police are now to arrest people who are clearly not terrorists or criminals in any normal sense of the word simply because they have embarrased the government then our democracy is further eroded.

Brian writes:I agree that there’s a case for reviewing the practice of arresting people on mere suspicion, just for questioning, when there’s not yet enough evidence to charge them. But I don’t think there’s any question here of arresting anyone “simply because they have embarrassed the government”: numerous press reports suggest at least the possibility that someone, not necessarily Damian Green, has actually been encouraging a mole, or possibly several moles, in the home office to commit at the lowest a common law offence and quite possibly a crime, in what the minister directly concerned has repeatedly described as a “systematic” way. The permanent secretary at the home office was clearly right in those circumstances to ask the police to investigate and I don’t see how the police could investigate without at least interviewing Mr Green. We know only a fraction of the facts so far, the police know more than any of us, and we really need to suspend judgement on the proportionality (or lack of it) of the police action until we know much more about the nature and extent of their suspicions and the grounds for them.

OK this seems very clear to me. And it has less to do with the particular facts of this case but rather with the relationship between the executive branch of government and the legislature.It seems entirely clear to me that this is about the executive branch putting pressure on the legislative branch and quite possibly in a deliberate manner.I am talking here not about the ministerial executive positions but rather about the senior civil servernts who are very powerful individuals within this branch of government.Essentially (1) they don’t want a leaky organisation and want to ensure their own staff tow the line. This is a reasonable proposition.Another outcome (2) that would be very useful to them would be for opposition MPs to be warded off detailed contacts and enquiries within the service.To that end requesting a police investigation that they thought may very well lead to the action re Mr Green served the purpose of point (2) whilst a) Protecting ministers b) ensuring that the civil servents cannot be criticised due the operational independence of the police.So to summarise it seems to me that a strategy may well have been cooked by non-elected civil servents up which was likely to serve points (1) and (2) without specifically mandating them.Of course if we had the US model of a (near) wholly appointed civil service then we wouldn’t have this problem (just, I suspect, a bunch of others!)Finally if the hot blood of the political process is frozen by this approach consider where Clive Ponting/Tam Dayall would have ended up!

Brian, No constable can arrest on “mere suspicion” . These were the rules I always used when considering whether an arrest was lawful of not.

There must be sufficient grounds for the arresting officer to have formed a reasonable suspicion of the person’s guilt (objective element). The information on which the officer bases his suspicion need not be confined to admissible evidence.
The arresting officer must hold genuine belief that the suspect was probably guilty of the offence (subjective element).
The exercise of the power of arrest must not be used unreasonably. The arrest must be necessary.

t

Brian writes: Tony, thanks for that expert legal corrective. I wonder what the “sufficient grounds” were for the cops to have “formed a reasonable suspicion of [Damian Green’s] guilt” for them to have arrested him. Can you tell us ignorant laymen what kind of factor in a case like this makes an arrest ‘necessary’? They can hardly have thought Mr Green, a front-bench MP, likely to do a runner. In what way would the police have been inhibited in their investigation if they had obtained search warrants for Mr Green’s offices and houses — as they evidently did — but merely invited poor Damian round to the copshop for a cup of tea and a few hours of questioning? Tony Blair was of course questioned by the police over the cash for honours investigation but not arrested, while Lord Levy was arrested for questioning, as was Ruth Turner, a senior adviser at No 10. What was the difference in practical terms? The answer may cast further light on the Damian Green affair.

Brian,This is just a guess, but I suspect that once Green’s name came up as the person to whom Galley had given the documents, that was enough to give plod the reasonable suspicion etc. of the MP’s involvement. There would then be a prima facie conspiracy case against him. The evidence would largely be documentary, which could be destroyed. Of course Green would never do such a thing would he would he? To invite him round for tea would have meant his treatment would have been different from that of Galley. I dealt with dozens of these conspiracy cases. And although some involved professionals they were all arrested à la Green. I would have been staggered had I been invited to the nick to share the Earl Grey and digestives to chat over the evidence! It just does not happen.
tBrian writes:Tony, thanks once again. I would welcome your (and others’) comments on a very relevantletter in today’s (2 Dec 08) Times:

Sir, The arrest of Damian Green brings into the public arena an issue which troubles me as a lawyer and former police officer.

For many years police forces across the country have eschewed the practice of dealing with criminal suspects “on summons” in favour of the practicality and convenience of arrest and charge. This is especially the case since the latter procedure entitles them to enter and search premises without a warrant.

The vast majority of criminal suspects dealt with in this way are guilty of some if not all of the wrongdoing of which they are suspected. Some, while not guilty, may not be deserving of public sympathy. A small number, however, are guilty of neither criminal nor moral wrongdoing and have become the subject of suspicion through no fault of their own, that or they have made a genuine mistake or error of judgement. In such cases police reluctance to allow suspects to be dealt with as a “non-casual visitors to a police station” coupled with the removal of restrictive powers of arrest in favour of the very wide power to arrest “to allow the prompt and effective investigation of an offence” occasionally criminalises truly innocent individuals. The decision to arrest in every case has become routine, even policy.

The fact that similar thinking has now led to the arrest and detention of a prominent politician and caused adverse comment to be directed towards the Metropolitan Police may hopefully cause police forces across the country to review their practices in this area.

Adam Walker
Burley in Wharfedale, N Yorks [Emphasis added]

Is it really the case that by arresting Damian Green the police avoided the need to get a search warrant for the searches they conducted of his houses and offices (two of each)? And is it the case that the only justification the police now need for an arrest made for questioning on suspicion of an offence is that it allows “the prompt and effective investigation of an offence”, as Mr Walker says? If so that would seem to give the police far greater latitude to arrest people for questioning, and by-pass the need for search warrants, than you suggested in an earlier comment, wouldn’t it?

The above letter raises a very interesting point, that police only have to get a complaint from a reputable source and this gives them grounds for arresting someone and holding them in the police station for an extended period while they raid their homes/offices for incriminating evidence, without further search warrants. What happens if nothing is found? Do the police offer apologies or pay damages?

The following case caught my attention. A village in Yorkshire used to hold an annual bonfire party on Nov 5th which was banned a few years ago because of rowdy behaviour. Four years ago the villagers started holding it again, apparently withouth any problems, but fell foul of a local jobsworth councillor who insisted they observe the ban. They ignored him. This year, as the party started, 14 policemen turned up to “study safety arrangements”. The organiser gave them his name as a contact. Two days they turned up and dragged him off to jail where they took his dna and locked him up for 10 hours, charging him with arson, following a complaint by a member of the parish council. Periodically the police opened the grille in the hapless man’s cell door and asked him to plead guilty and get off with a caution. He refused. The police have said their actions are justified because they received a complaint and the CPS advised them it was actionable. So they arrested the bonfire lighter and locked him up for 10 hours to extort a confession! (Angry villagers forced the councillor to resign).

This highlights once again the role of the CPS. There have been a number of cases of late where the police have claimed they acted on the advice and with the approval of the CPS and the CPS has said basically “On No you didn’t, we gave you initial guidance, that was all”. The Damian Green case appears to be another example of this failure in communications. The police are said to have told the Serjeant at Arms that their raid on the H of C was approved by the DPP. He denies it saying they only sought initial guidance. Once again the police appear to have mistaken CPS advice on what they COULD do legally with approval for what they should do.

Interestingly the head of the counter terrorism unit Bob Quick took the decision to raid Damian Green’s offices, even if it was not done by counter terrorism police. We are told he is the UK’s most senior anti terrorist officer, and yet until January this year he was Chief Constable of Surrey and before that he had a long career in the Met crime squad. Not exactly a background in how to handle political conspiracies etc.

The other issue which deeply concerns me is that the police have used the provisions of the PACE Act, as indicated by the letter above, to arrest Damian Green and search his offices avoiding the need for specific search warrants AND to confiscate and sift through, all his constituents’ correspondence. This is privileged information. I think this should be the subject of separate search warrants and the law should be clarified in this respect (and for doctors, social services etc).

Brian writes:Many thanks, Mrs J. You make many very interesting points. I would only add, with reference to your reference to “the head of the counter terrorism unit Bob Quick” that according to the Met’s website, “Assistant Commissioner Robert Quick [is] responsible for Specialist Operations”, which is spelled out as follows:

A number of these [functions] are grouped into a section of the organisation known as Specialist Operations. They deal with tasks such as intelligence, security, protection of politicians, embassies and royalty, and the investigation of certain categories of serious crimes, including racial and violent crime and terrorism. (http://www.met.police.uk/about/organisation.htm)

More details of just what the Specialist Operations branch does are given at http://www.met.police.uk/so/and its five sub-pages. Thus Bob Quick is responsible for a wide range of activities which include but are by no means confined to counter-terrorism, and the Met have denied that the questioning of Mr Green and the searches of his houses and offices were conducted by anti-terrorism officers, even though the bulk of the reporters of all this in the media, and letters editors who decide which readers’ letters to publish, seem unable to grasp it.

As a tail-piece, Damian Green may be grimly amused to know that the policemen who held him for nine hours and questioned him for two of them were from a branch of the Met whose duties include “protection of politicians”….

(e) *to allow the prompt and effective investigation of the offence or of the conduct of the person in question. This may include cases such as:

(i) Where there are reasonable grounds to believe that the person:

has made false statements;

has made statements which cannot be readily verified;

has presented false evidence;

may steal or destroy evidence;

may make contact with co-suspects or conspirators;

may intimidate or threaten or make contact with witnesses;

where it is necessary to obtain evidence by questioning; or

(ii) when considering arrest in connection with an indictable offence, there s a need to:

enter and search any premises occupied or controlled by a person

search the person

prevent contact with others

take fingerprints, footwear impressions, samples or photographs of the suspect

(iii) ensuring compliance with statutory drug testing requirements.

(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question. This may arise if there are reasonable grounds for believing that

if the person is not arrested he or she will fail to attend court

street bail after arrest would be insufficient to deter the suspect from trying to evade prosecution

*This phrase is referred to in the Times letter.

It’s not difficult to pick out the provision applying in this case.

Brian writes:I am grateful to Tony for this remarkable text. These requirements for the arrest of a ‘suspect’ for questioning look to me extraordinarily loose and wide-ranging: for example, one of the criteria is that an arrest may be appropriate “where it is necessary to obtain evidence by questioning”! (The code is also strangely sloppily drafted:

…to allow the prompt and effective investigation of the offence or of the conduct of the person in question. This may include cases such as: (i) Where there are reasonable grounds to believe that the person: … where it is necessary to obtain evidence by questioning; …

This plainly gives the police carte blanche to arrest virtually anyone so long as they can plausibly claim that the arrest will “allow the prompt and effective investigation of the offence or of the conduct of the person in question” and that they have reasonable grounds for believing that it’s ‘necessary’ to obtain evidence by questioning. On this basis it’s amazing that they don’t arrest everyone whom they feel like questioning. These rules are nonsensical and the sooner they are radically revised, the better. But as long as they are currently in force, the police seem to have an open and shut case for their arrest of Damian Green.

Regarding ‘Myth No 4.’ If the documents did hold any form of Protective Marking, then the police would surely have arrested Green under the provisions of the Official Secrects Act. That they chose to use the ‘Misfeance in a public office’ law to affect their arrest suggests very strongly that these documents did not contain Protectively Marked material.*
*i.e. Restricted, Confidential etc.

Brian writes:Thanks, Rob. But I don’t think the argument is necessarily conclusive. We know that more than 20 documents were systematically leaked over a period of two years; only four of these are in the public domain, and we don’t know how many the police had identified when they arrested Damian Green for questioning. Starting by invoking the common law offence of procuring malfeasance in a public office leaves the options open, depending on what further evidence comes to light. It’s a fair guess that they were hoping to find more leaked documents on Green’s computers or in his filing cabinets. If any of these turned out to have been classified, it would have been open to them to up the charge (if any) to an offence under the Official Secrets Act (OSA). However, even if some of the documents already identified as having been leaked were classified (Restricted or higher), they and the Director of Public Prosecutions might still have been reluctant to invoke the OSA because of the notorious reluctance of juries to convict under the Act, especially since the Ponting case, even when the evidence supporting a conviction is overwhelming.

Brian,Ok but “There must be sufficient grounds for the arresting officer to have formed a reasonable suspicion of the person’s guilt (objective element). The information on which the officer bases his suspicion need not be confined to admissible evidence. The arresting officer must hold genuine belief that the suspect was probably guilty of the offence (subjective element). The exercise of the power of arrest must not be used unreasonably. The arrest must be necessary.”So I certainly would not describe these provisions as “carte blanche”t

I have been moving house in the last week and have only just caught up with the Damian Green arrest story. Brian Barder and Tony Hatfield have dealt with the matter on their own blogs and I have no comment……